Short Sales

Unfortunately, short sales or short pays are more common every day. The following are a few items that agents and brokers should either learn about or remind themselves of prior to handling a potential short pay transaction.

Pre-Listing Considerations – A seller shonld know the ramifications of a successful short-pay agreement with the lender. An agent considering taking a
listing on a short-pay should advise the seller, in writing, to seek tax and legal
advice before signing the listing agreement.

o Taxes – The seller likely will be obligated to pay taxes on any debt forgiven by
the lender. The IRS considers debt forgiveness as ordinary income. Consequentially, the difference between the loan amount and the short-pay agreement will be taxed at the seller’s ordinary incom tax rate.
o Credit Score – A lender may handle a short-pay in a number of different ways. It can report the loan as paid in full which would have no adverse credit consequences. A lender may also report the loan as being “satisfied.” Future lenders and credit reporting agencies may consider a “satisfied” loan as being similar to a deed in lieu of foreclosure. This may have a devastating impact on the seller’s credit score.
o Financial disclosures – A seller should know that a lender will likely require detailed financial statements from the seller as a condition to approving a short-pay. Often, less-than-accurate information from the seller was used to obtain the loan the seller now cannot afford. This may cause a seller to refuse to divulge accurate fmancial statements. An agent probably will want to refuse to take a listing in this situation. At the very least, a listing agent should add a term in the listing agreement obligating the seller to cooperate with the lender’s requests.

Multiple Listing Service – The listing should clearly be shown as a short sale. Additionally, provided the local MLS allows for variable commission, there should be a statement that the commission offered to the cooperating agent is subject to lender approval. Often, lenders will require that the agents reduce their commissions before they approve a short-pay.

Considerations of the Buyer’s Agent – A buyer’s agent should run a property profile to determine the amount of outstanding indebtedness. A recent notice of default is a good indicator that a short-pay might be necessary. A buyer’s agent should also calculate likely commissions and closing costs to determine if an offer below the listing price will trigger a short-pay.

Working with the Lender – Prior to negotiating with a lender, an agent should obtain the seller’s written consent to keep the lender informed as to the status of the transaction. An agent should also send a letter to the lender confirming that the agent is not acting on behalf of the lender. This will be helpful in avoiding any claims that the agent is also a fiduciary for the lender.

Marketing Considerations – An agent should be careful when marketing to attract short-pays. No promises or guarantees should be included in any advertisements or flyers. All advertisements should be reviewed by a broker. An agent should be careful when accepting referrals from credit counseling services. Any referring source should be investigated to determine ethics and business practices before taking any referrals.

Contract Formation – When a short-pay appears to be necessary, the CAR Short Sale Addendum should be used. The offer or counter offer should contain a
provision making the execution of the Short Sale Addendum a condition of the transaction.

2012 – The End of the Commercial Real Estate As We Know It?

Some people only associate the subprime lending meltdown with the residential real estate market. However, any loan to any borrower can be “subprime” if the debt to equity or income ratios are to high. This applies to the commercial real estate market as well.

Over the past several years, the market for commercial property has enjoyed the very best conditions. In fact, by early 2007, delinquencies on commercial loans fell to all-time record lows. However, commercial lenders were no less foolish than residential lenders making loans to home buyers with questionable credit and/or finances. Is there any reason to believe that commercial lenders will not suffer the same fate as residential lenders?

There are factors that may soften the blow to commercial lenders. Commercial real estate is a smaller market than residential real estate. Commercial landlords often have a diversified group of tenants with different income streams. A commercial landlord also has the advantage of being able to more easily reconfigure available space to meet the needs of new occupants. Also, the supply of commercial buildings has not increased dramatically over the past several years. Most owners of residential property do not have these advantages.

With all this being said, industry leaders have intimated that that lenders are set for a collision in the years to come. Banks have already recognized an estimated 60% of cumulative losses, or about $50 billion. Recent indicators suggest that the commercial real estate market may have hit rock bottom despite a cascading drop in the price of apartments, office buildings and industrial properties nationwide in 2009. According to Moody’s/REAL Commercial Property Price Index, commercial property values have increased 1% in 2010 after 13 months of consecutive declines. However, some commercial real estate industry experts believe that the problems will get worse before they get better. High-priced commercial spaces will soon feel the same pinch considering the nation’s unemployment rate remains at 10% with consumer spending levels continuing to slide.

Thousands of community and regional banks nationwide that hold approximately $860 billion in commercial mortgages and construction/development loans are bracing for implosion. Banks have been slow to recognize potential losses on these loans since many borrowers are still current on their payments despite being upside down on their loans; thus, foreclosures are not on the books. With a subtle nudge of industry regulators, many banks have extended the terms of a majority of their commercial loans in hopes that property values and occupancy levels will improve in 2011. Unfortunately, the consensus is that neither prices nor occupancy rates will improve anytime soon. And, borrowers will find it even more difficult to refinance their existing loans considering an approximate $1.4 trillion in outstanding commercial real estate paper is expected to come due over the next three years.

By Stuart Miller, Esq.
Posted by Carlson Law Group, Inc. at 12:05 PM